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By Lisa HoffmanPublished: Jul 30, 2014

Products Case Revived Against Smith & Wesson

Michael Velardo/FlickrA 9mm Smith & Wesson handgun.

Relying on the conclusion of a plaintiff’s expert, even though it contradicted the injured plaintiff’s memory of firing a revolver and had been excluded at trial, a divided federal appeals panel reversed a lower court’s dismissal of a product liability case against Smith & Wesson Corp.

The U.S. Court of Appeals for the Sixth Circuit, voting 2-1, found that mechanical engineering expert and plaintiff’s witness Roy Ruel’s analysis of the alleged misfiring of plaintiff Mark Lee’s 460XVR revolver should have been admitted and, in fact, deemed more reliable than Lee’s recollection of the accident that damaged his right eye.

“Ruel had the appropriate qualifications, he used reliable methods, and his opinion was based on physical evidence from the accident,” wrote Sixth Circuit judge John Rogers, who was joined by fellow appeals judge Eugene Siler in the July 29 opinion reversing and remanding the case, Lee v. Smith & Wesson, to the U.S. District Court for the Northern District of Ohio.

Smith & Wesson argued that the firearm was not defective and that Lee was hurt as a result of recoil.

Lee was target shooting in 2006 when his S&W revolver discharged improperly, allegedly causing permanent damage to his eye, nose and face. Lee recalled that upon firing the firearm’s previously closed cylinder swung open, causing a blast that knocked off his safety glasses and injured him.

Ruel’s examination of the weapon and circumstances led to his conclusion that the revolver fired without its cylinder fully closed and locked, which caused hot gas to shoot from the revolver, striking Lee in the face.

Ruel determined the revolver was defective in design and manufacture because it could be cocked and fired with the cylinder open, and blamed a loose ejector rod for preventing the cylinder from properly closing, according to the panel’s opinion. He also faulted Smith and Wesson for not warning the revolver could be fired with the cylinder open.

Smith & Wesson objected to the inclusion of Ruel’s analysis because of a series of inconsistencies with Lee’s recollections, including that he had closed the cylinder without any problem. The district court agreed with the manufacturer and dismissed the case. But the appeals panel gave more weight to Ruel’s physical inspection of the revolver than to Lee’s memory of the accident.

But in his dissent, Sixth Circuit Judge Damon Keith disagreed, contending that Ruel’s testimony didn’t fit the facts of the case and therefore was not relevant.